Consolidated Vultee Aircraft Corp.

National Labor Relations Board - Board Decisions

Sep 20, 1946

70 N.L.R.B. 1357 (N.L.R.B. 1946)

In the Matter of CONSOLIDATED VULTEE AIRCRAFT CORPORATION (Foirr
WORTH DIVISION, EMPLOYER and LOCAL AIRCRAFT No. 900, AF-
FILIATED FEDERATED INDEPENDENT TEXAS UNION , PETITIONER
Case No.16-R-172!x.-Decided September 20, 1X 16
air. Raymond E. Buck, by Mr. Harry N. Harris, and Messrs. J. M.
Hassler and Walter S. Lindsey, of Fort Worth, Tex., for the Employer.
Messrs. Chester Clark and J. Harold Craik, of Fort Worth, Tex.,
for the Petitioner.
Mr. J. 147. Null, of San Antonio, Tex., and Mr. Fred Otto, of Fort.
Worth, Tex., for the I. B. E. W.
Mr. Charles L. Mulholland, of Dallas, Tex., and Mr. Johan F. Foster,
in., of Fort Worth, Tex., for the I. A. M.
Mr. Conrad A. IPickham, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, hearing in this case was held at Fort
Worth, Texas, on June 12 and 13, 1946, before Earl Saunders, hear-
ing officer . The hearing officer's rulings made at the hearings are free
from prejudicial error and are hereby affirmed. The motion of the
International Association of Machinists , Local 776 , to dismiss the
petition is denied for the reasons set forth in Section III, infra.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Consolidated Vultee Aircraft Corporation, a Delaware corpora-
tion, operates a plant at Fort Worth, Texas, known as the Fort
Worth Division, at which it is engaged in the manufacture of air-
craft. This proceeding is concerned solely with this plant. Annually,
the Fort Worth Division uses raw materials valued in excess of
-$500,000, of which more than 50 percent is shipped from points out-
side the State of Texas. The plant's annual production of air-
70 N. L. R. B., No. 140.
1357
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
planes is valued in excess of $1,000,000, substantially all of which is
sold to the United States Government or agencies thereof and ulti-
mately transported to points outside the State of Texas.
The Employer admits and we find that it is engaged in commerce
within, the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization 1 affiliated with Federated
Independent Texas Union, claiming to represent employees of the
Employer.
International Association of Machinists, Local No. 776, herein called
the I. A. M., is a labor organization, claiming to represent employees
of the Employer.
International Brotherhood of Electrical Workers, Local No. 116,
herein called the I. B. E. W., is a labor organization affiliated with the
American Federation of Labor, claiming to represent employees of
the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
The I. A. M. has moved to dismiss the petition on the grounds that
(1) the petition is untimely, (2) the current contract between the
1. A. M. and the Employer, dated May 23, 1946, constitutes a bar to
the present proceedings, and (3) the pending charges against the
Employer constitute a similar bar.
We find no merit in any of these contentions. There have been no
elections conducted among the employees in the unit sought- since its
establishment in 1943 2 Since then the I. A. M. has enjoyed an un-
interrupted period as the bargaining representative of these em-
ployees. The fact that the original petition was filed 3 during a strike
by the I. A. M. against the Employer, and that negotiations for a new
contract were in progress at that time between the Employer and the
I. A. M., are not reasons for delaying a determination of representa-
tives. Nor will the Board entertain the contention that the current
contract is a bar to the present proceedings in the face of a specific
'Although neither the Petitioner nor the I. A. M. admits the other 's status as a labor
organization , the evidence introduced on these issues clearly discloses that both are labor
organizations within the meaning of the, National Labor Relations Act.
2 Matter of Consolidated Aircraft Corporation , 47 N. L. R. B. 30.
8 The original petition was filed April 17, 1946, and a second amended petition May 27,
1946. ,
CONSOLIDATED vULTEE AIRCRAFT CORPORATION 1359
provision therein to the contrary' The third contention is without
merit in that all charges filed by the I. A. M. against the Employer
have been dismissed on the merits.s
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner, the I. A. M., and the Employer 6 all agree that the
appropriate unit, may consist of all classifications of hourly rated
employees at the Fort Worth plant in the several units heretofore
found appropriate by the Board.7 This would consolidate with the
originally established production and maintenance unit, set up in 1943,
the separate units of inspectors,' timekeepers,0 and certain tool classi-
fications 10 established by the Board in later proceedings. In the alter-
native, the parties agree that the same units as have been heretofore
separately established are appropriate. The I. B. E. W., however, seeks
severance of a craft unit of all the Employer's maintenance electricians,
excluding the stock and department clerks, the foreman, assistant fore-
man, and shift electrical foreman. Although the Petitioner is agreeable
to such a unit, the I. A. M. contends that it is inappropriate in view
of the past bargaining history. It further argues that the I. B. E. W.
is precluded from seeking to sever the electrical group from the his-
torical unit because of a collateral agreement between it and the I. A. M.
The Employer takes no position on the latter issue.
The problem, relating to a craft unit of maintenance electricians
There are approximately 43 employees in the unit sought by the
I. B. E. W. These employees are in the electrical department, a di-
vision of the plant engineering and-maintenance department, and are
charged solely with the maintenance of the Employer's electrical
• A strike settlement agreement , attached to and made a part of the contract in ques-
tion. specifically states that " . the signing of this agreement shall not constitute a bar
to the determination of the question of representation now existing in . . . Case No.
16--R-1724 . "
i Cases Nos. 16-C-1329 and 16-C-1389.
The Employer's agreement as to the appropriateness of the unit is subject to its
contention,, raised in the previous matters befoie the Board
The initial unit established was the production and maintenance unit in Matter of
Consolidated Aircraft Corporation, 47 N L R B 30, supplemented in 61 N L R. B. 869
8 This group was set up as a unit of specially skilled employees in Matter of Consolidated
Vultee Alrereft Cotpoiatton, 55 N L It B 577
These employccs. originally excluded from the production and maintenance unit as
clericals, were set up to it separate unit in Matter of Consolidated Vultee Aircraft Corpora-
tioit, 60 N L 11 B 525
10 Tool planners, tool designers, and tool liaison employees, not performing manual labor,
were set up as a unit of specially skilled employees in Matter of Consolidated Vultee Air-
craft Corporation, 64 N. L R B 400
t7
1360 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment. Apart from the bargaining history, they constitute a
sufficiently homogeneous and skilled group to comprise a separate
appropriate unit.
In 1942, before the hearing in the proceeding which resulted in the
election and certification of the I. A. M., the I. B. E. W. and the I. A. M.
entered into a written agreement whereby the I. B. E. W. agreed to
withdraw its intervention in the proceeding, and not seek a unit of elec-
tricians, provided that the I. A. M., if ultimately certified as bargain-
ing representative, would (1) make provision for the election of
I. B. E. W. representatives to the bargaining and grievance committees
created by the I. A. M., and (2) submit for approval by the I. B. E. W.
any contract terms between the I. A. M. and the Employer directly
affecting wages, hours, or working conditions of the employees in the
electrical maintenance department. The Employer was, until very
recently, unaware of the existence of this agreement. The record in-
dicates that the coafliliation of the I. A. M. and the I. B. E. W. within
the American Federation of Labor was a primary reason for this agree-
ment. The unions had been advised by the Regional Director for the
Sixteenth Region that the Board would not proceed to it determination
of representatives pursuant to the I. A. M.'s pending petition so long
as the unit was in dispute between two A. F. L. affiliates. Within the
past year the I. A. M has become disaffiliated from the A. F. L. -
The I. A. M. was certified as a result of the proceeding mentioned,
and has since, without interruption, acted as the bargaining agent of
all hourly rated production and maintenance employees of the
Employer. Three contracts have resulted between the I. A. M. and
the Employer during this bargaining period,11 all of. which have
covered the electricians as part of the production and maintenance
unit. At the negotiation conferences leading to the last contract,
from January to May 1946, a member of the I. B. E. W. was present,
but, despite the terms of the 1942 collateral agreement, it appears that
no I. B. E. W. representative participated in the negotiation of the
earlier agreements, nor were these submitted to the I. B. E. W. for
its approval.12 It was only in connection with the present proceed
ing that the Employer was notified of the I. B. E. W.'s desire to
represent the electricians separately. The record does not indicate
that the I. B. E. W. has maintained a substantial number of members
"These contracts are dated August 25, 1944, October 10, 1945, and May 23, 1946,
respectively.
iz In answer to the I. A. M 's argument that the I B E W is precluded by the 1942
agreement from seeking to represent the electricians in a separate unit, the I Il 1 W
contends that that agreement was vitiated by the I A M's failure to coml,ly with its
terms in this regard The record indicates that this breach , it any , may have been waived
by the I B E W. In any event, for the reasons hereinafter more fully stated, we do not
regard the present status, of the collateral agreement as material to the issue of the
appropriate unit. -
G
CONSOLIDATED VULTEE AIRCRAFT CORPORATION 1361
among the employees in the electrical maintenance department, or
that it has otherwise acted to preserve the autonomy of the craft
group during the 3-year period since collective bargaining commenced.
On the contrary, the employees in question have availed themselves
freely of the grievance procedure established and administered by the
I. A. M. under its contracts,13 and apparently have acquiesced in being
represented as part of the industrial unit. Members of the I. B. E. W.
have been made departmental representatives in the plant grievance'
system, and, in conformity with the collateral agreement of 1942, have
held positions on the plant grievance committee 14 However, this
arrangement was not, in our opinion, inconsistent with bargaining
on an essentially industrial basis, nor was it sufficient, standing alone,
to prevent the effective assimilation of the electricians within the
plant-wide unit.
Considering all the foregoing facts, we conclude that the I. B. E.
W.'s proposed,unit is inappropriate in view of the history of collective
bargaining since 1943. The factors, stressed by the Board in Matter
of General Electric Company - (Lynn River Works and Everett
Plant),", which sometimes warrant severance of a craft in the face of
historical bargaining on an industrial basis, are not present here.
Nor is any different, conclusion justified by the collateral agreement
whereby the I. B. E. W. ceded jurisdiction to the I. A. M. in return
for the right to share certain of the I. A. M.'s representative functions.
We reject, of course, the I. A. M.'s contention that the I. B. E. W.
should now be precluded by that agreement from pressing its claim
for severance of the craft group, for, as we have recently held, such
agreements between labor organizations do, not relieve the Board of
its statutory duty to define appropriate bargaining units in the light
of all the relevant facts 15 Nevertheless, viewing the I. B. E. W.'s
case on its merits, and considering the impact of the 1942 collateral
agreement and its performance upon the collective bargaining rela-
tionships which were thereafter created, we are satisfied that an in-
"The record discloses that on a proportional basis the plant grievance system has been
used more by the electricians than any other group of employees
14 These individuals were required to become members of the IAi1I , their dues being paid
by the I. B E W
1'u 58 N L R B 57
16 Jfattci of Philip Morris d Company, Ltd , Inc , 70 N L. R B 274 In this case
the Board said : ' . . . Commitments by labor organizations concerning the disposition
of craft groups are not, of (ourse, decisive of issues regarding appropriate units, but are
facts to be considered sitliin the framework of other facts relevant to craft severance
problems, and are accorded varying emphasis depending on the suirounding circum-
stances . . . The . . . agreement is an acknowledgment by experienced trade unionists
of the feasibility of separate bargaining , but it does not outweigh the other factors which
indicate ' the dubious wisdom of that solution To accord decisive effect to this single
factor in the circumstances of this case would be, by indirection, to grant specific per-
formance of the agreement, and would, by the same token, deprive the employees of their
right to hale the Board determine the unit question on its merits .11
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dustrial unit has been firmly established in this case, and that the
historical pattern should not be disturbed.17
The problem relating to consolidation of the separate units
As previously indicated, the Petitioner, the I. A. M., and the
Employer are agreeable either to an over-all unit comprising all the
units previously established by the Board, or several separate units
in strict accordance with the previous determinations mentioned.
It is apparent from the record that despite the establishment of
separate units by the Board, the I. A. M. and the Employer have
treated all employees as part of. one over-all unit for bargaining
purposes. The negotiations for each of the three contracts con-
summated during the period of bargaining from 1943 have not only
been carried on by one bargaining committee, but all employees have
been covered by the same contract, with no specific treatment of any
classification. %
We are reluctant to depart from previously established units in the
absence of evidence supporting the desirability of such a change''
Where it is apparent that existing separate units have a clear comniu-
nity, of interest, the Board has, on occasion, permitted a merger of such
units.l9 In the present case, however, the separate units previously
established are either clerical 20 or technical 21 in function, and, in our
opinion, lack the requisite community of interest with the production
and maintenance employees to include them in the larger unit.
We find, therefore, in substantial conformity with our previous
decisions and the agreement of the parties at the hearing, that the
following constitute units appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
(1) All hourly rated production and maintenance employees of the
Employer at its Fort Worth Division, including all confidential em-
ployees performing manual labor, tool designers performing manual
labor, tool provers, leadmen, department clerks employed in the fac-
17 Accordingly, we do not decide the issues raised by the I . B E W 's contention that
the 1942 agreement is no longer binding because of the I. A M ' s disaffiliation from the
American Federationof Labor and the I A M ' s alleged breach of contract.
'$ Matter of Cobbs and Mitchell Company, 65 N L It B. 488 , Matter of National Elec-
tric Products Corporation, 64 N I, R B 371 , Matter of Weyerhaeuser Timber Company,
62 N L. R B 1166; Matter of Indianapolis Potter t Light Company , 62 N L R B 1279;
Matter of Bethlehem-Fairfield Shipyaid, Incorporated, 58 N. L. It. B. 579 ; Matter of
Mathseson Alkali Works , 55 N. L It. B. 1100
19 Matter of California Door Company, 52 N L. R B. 68, Matter of Savannah Electric
and Power Company, 48 N L It. B 33
20Timekeepers were excluded from the production and maintenance unit as clericals in
Matter of Consolidated Aircraft Corporation, 47 N L It. B 30, and set up as a separate
unit in Matter of Consolidated Vultee Aircraft Corporation , 60 N L. R B 525
21 Inspectors , and tool planners, designers , and liaison eniplovees not performing manual
work, were set up as units of specially skilled employees in Matter of Consolidated Vnltee
Aircraft Corporation, 55 N. L. R B 577, and 64 N L R B 400, respectively
CONSOLIDATED VULTEE AIRCRAFT CORPORATION 1363
tort' in connection with production and maintenance records, and all
maintenance electricians, but excluding all executives, administrators,
professional employees, draftsmen and technicians, general office em-
ployees, general foremen, foremen and assistant foremen, supervisors
and assistant supervisors, department heads and assistant department
heads, engineers, medical employees, plant-protection employees, ac-
counting and cost employees, accounting section heads, the accounting
supervisors, inspectors, the chief inspector, timekeepers and time
clerks, tool design checkers, tool clerks, all tool planners, tool designers
and tool liaison employees not performing manual labor, student em-
ployees, department clerks employed in the general offices, the general
foremen's offices and the parts plant office, and all or any other super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action.
(2) All inspectors of the Employer at its Fort Worth Division, ex-
cluding the chief inspector, supervisors and assistant supervisors, and
all or any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action.
(3) All timekeepers of the Employer at its Fort Worth Division,
excluding the accounting supervisor, accounting section heads, group
leaders, and all or any other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action.
(4) All tool planners, tool designers, and tool liaison employees of
the Employer at its Fort Worth Division not performing manual work,
excluding foremen, assistant foremen, confidential clerks, and all or
any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action.
DIRECTION OF ELECTIONS
a
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Consolidated Vultee Aircraft
Corporation (Fort Worth Division), Fort Worth, Texas, elections,
by secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction, under the
direction and supervision of the Regional Director for the Sixteenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Sections 203.55 and 203.56, of National
Labor Relations Board Rules and Regulations-Series 4, among the
employees in the several units found appropriate in Section IV, above,
who were employed during the pay-roll period immediately precedin,
712344-47-vol. 70-87 -
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of this Direction, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of the election, to determine whether they desire to be represented by
Local Aircraft No. 900, Affiliated Federated Independent Texas
Union, or by International Association of Machinists, Local No. 776,
for the purposes of collective bargaining, or by neither. 2
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of
the above Decision and Direction of Elections.
m In the election hereinabove directed, the I. B. B. W. has not been included on the
ballot on the assumption that it does not desire to participate in view of the Board' s decision
refusing severance of a craft unit of electricians.